You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists

A woman who says she was incorrectly accused of sharing copyrighted material on BitTorrent has filed a harassment lawsuit against a copyright troll. Porn outfit Hard Drive productions had demanded $3,400 to make their threatened lawsuit go away but their target not only says she's innocent and harassed, but also that porn cannot be copyrighted. So, does filmed sex promote scientific progress or constitute useful art? A court may soon have to decide.

When confronted with an accusation that they have illegally shared unauthorized material online, Internet users quickly realize they are in a Catch 22 situation. Even if innocent, these accusations cost money to deflect, a cost which often exceeds the amount the claimant says it will accept in settlement.

Hard Drive Productions sent one such letter to Liuxia Wong last year, claiming that her IP address had been used to share “Amateur Allure Jen” on BitTorrent.

Wong was told by the porn outfit she could be sued for $150,000, but for ‘just’ $3,400 the whole thing could be made to go away. Many might have chosen to settle at this point, but this California resident bit back and went on the offensive.

As noted by FightCopyrightTrolls, Wong hired Steven Yuen, an experienced IP litigator from the EFF’s subpoena defense list, to go after Hard Drive Productions. It could turn out to be a fascinating case.

In a lawsuit filed at the end of January, Wong says that she did not download the work in question and goes on to attack Hard Drive on a number of fronts including harassment.

Hard Drive report the alleged infringement as taking place March 28th 2011, but Wong says the movie in question wasn’t officially registered until April 22nd 2011. The letters, therefore, “were designed to coerce her into settling the case despite the absence of any facts supporting liability against her.”

The lawsuit further claims that in their letter to Wong, Hard Drive insist that the California resident would be liable for infringement even if her router was unsecured and someone else carried out the act without her knowledge. Wong’s suit dismisses that assertion as “erroneous”.

But perhaps most interestingly, Wong is challenging the notion that Hard Drive can own the copyright to its own work – indeed, that porn can be copyrighted at all.

“Article 1, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” the lawsuit details, adding:

“Early Circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.”

The lawsuit goes on to state that Hard Drive’s work does not fulfill the above criteria and in fact depicts obscene and criminal acts.

Wong is asking the court to issue an order declaring that not only is she not liable to Hard Drive for infringement, but that the company’s movie is not copyrightable and is illegal due to Hard Drive engaging in “solicitation, conspiracy to commit prostitution, pimping and/or pandering,” during its production.

Finally, a couple of interesting BitTorrent-related points are also raised in the suit. The first is that Hard Drive did not mitigate alleged damages since the company failed to use the DMCA to have monitored torrents taken down. The second involves the company hired by Hard Drive to do the monitoring.

“….Hard Drive…authorized its work to be distributed by its non-California licensed private investigators, who are in violation of California Business and Professions Code…while they were distributing and participating in the distribution of the work, and/or that Hard Drive is guilty of unclean hands due to its and/or its agents’ operation and use of honeypots, and/or the use of a third-party’s services as honeypots,” the suit adds.

In a sea of carbon copy BitTorrent mass-lawsuits, this case shines out as one to watch.